Director of Public Prosecutions v Dib
[2017] VCC 1578
•27 October 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-16-01478
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EDWARD AHMED DIB |
---
JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 November 2016, 14 March 2017 | |
DATE OF SENTENCE: | 27 October 2017 | |
CASE MAY BE CITED AS: | DPP v Dib | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1578 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW – SENTENCING
Catchwords: Attempted aggravated burglary, making threats to kill and criminal damage – offender suffering from acquired brain injury and cognitive impairment – deferral of sentence prior to consideration of the imposition of a Community Correction Order
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J Jassar | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr B Johnston | James Dowsley & Associates |
HER HONOUR:
1 Edward Dib, you have pleaded guilty before me to one charge of attempted aggravated burglary and one charge of make threats to kill and one charge of criminal damage.
2 Each of those offences are serious and that is reflected in the maximum penalty prescribed by law, namely 20 years’ imprisonment in respect to attempted aggravated burglary and 10 years’ imprisonment in respect to the two remaining charges.
3 You also admitted your prior criminal record and there have been three previous appearances spanning a period 15 October 2004 to 12 November 2015. On two occasions, in 2012 and 2015, without conviction you have been ordered to have your matters adjourned. In 2004, without conviction, an 18 month Community Based Order was imposed. You have successfully completed each of those orders.
4 Those past appearances relate to charges including assault police and driving offending, dishonesty and drug offending. They are of little relevance in sentencing you here today, apart from the fact that they have been recorded.
5 I shall now proceed to sentence you on the basis of the circumstances that were set out by the prosecutor, Mr Jassar, when he read the Crown opening, to which no issue was taken at the plea hearing.
6 This offending occurred on 31 May 2016 and the context of it was – the particular family circumstances in which you lived and your relationship with your sister, Randi, who is the complainant in this matter. At the time you were living with your parents at a property at 4 La Rose Street, Brunswick. They have a house and a detached bungalow at those premises. At about 8 pm on 31 May 2016 you were angry and upset with your sister, Randi, because you thought that she had not been visiting your father enough whilst he was spending time in hospital being treated for a serious medical condition. He had been on dialysis for some time.
7 When your sister returned home she was speaking with your mother, Carmel, in the kitchen of the main house. You entered the kitchen and started yelling and cursing at your sister, calling her names and threatening to kill her.
8 Both your sister and mother were very afraid due to your conduct and left the main house and went into the bungalow. Whilst there they could hear you continuing to yell and scream.
9 The racket was such that a neighbour called out to you to stop otherwise he would call the police.
10 Your mother told your sister that she would try to calm you down and so she left the bungalow, leaving your sister inside. There was a locked wooden door. You then approached the door to the bungalow, opened the unlocked security screen door and started to punch the wooden door, screaming all the while that you were going to kill your sister.
11 She pushed the door from inside, preventing you from entering the bungalow as she believed that you were going to break down the door. You stopped pounding at the door and then smashed a window with your fists.
12 Your sister thought she was going to die and dialled Triple Zero. You continued to bang on the door and at some point you stopped and returned to the main house.
13 As a consequence of smashing the window, you sustained a large laceration on your left arm. You went inside and put pressure on the arm, and washed off some blood.
14 Police then attended and they located you in the kitchen. You were bleeding heavily from the left arm. You were uncooperative and highly aggressive, such that it was decided that you needed to be sedated by some ambulance officers who had attended the premises. Six police were required to hold you down whilst the sedative was administered and until it took effect.
15 You were then arrested under the Mental Health Act 2014 and taken to the Royal Melbourne Hospital where you were observed. You were discharged the following morning.
16 You were then arrested by police and taken to Fawkner Police Station. You were interviewed and during that interview, you said the reason for doing those things was because you believed the bungalow belonged to you and you wanted your sister out and that out of frustration you banged on the window and cut your hand. You denied making threats to kill.
17 I accept that there was a particular context to this event, insofar as you had been drinking; you had consumed a quarter bottle of vodka and also you had a perception that your sister was not acting appropriately towards your father, in terms of not visiting him whilst he was having dialysis in hospital.
18 That does sound rather odd but the particular circumstances of your case is that you have been diagnosed with an acquired brain injury that impacts upon your cognitive capacity and personal function, and in my view there is a clear link between your condition and this offending.
19 I note that you were remanded in custody and there were 85 days pre-sentence detention. Your time on remand would have been particularly onerous. Initially, you were held in the cells of the local police station for eight days and then you were transferred to Melbourne Assessment Prison for one night and then onto the Melbourne Remand Centre. You did not have any specialist psychiatric care whilst you were in custody, but you were assessed by a psychiatric nurse.
20 On 24 August 2016, at the committal mention, pleas of guilty were entered and the matter then proceeded by way of straight hand-up brief and you were then granted bail.
21 I noted that there was a notice of related summary charge, Charge 3, unlawful assault, but the prosecutor in this proceeding has confirmed that that charge is to be withdrawn and therefore that summary charge will be struck out.
22 I have had regard to your background, you are 42. Your history is somewhat unusual. Your family is of Lebanese origin. Your parents migrated to Australia in the 60s and you were born here, following their arrival in Australia. You are the second youngest of five siblings and you grew up at the house where the offending occurred.
23 You undertook formal education at Brunswick North Primary and Brunswick High School. You finished Year 10 at age 16 and then you worked as a kitchen hand at a fairly well known restaurant called “Twins” in Carlton, for about two years. At the age of 18 you travelled to St Petersburg, Russia where studied the Russian language for six months and lived with your maternal uncle who is an orthopaedic surgeon. Your uncle encouraged you to complete your high school education in Russia, which you did.
24 On completion of your education you then entered and were accepted into a degree of medicine at the Academy of Mechnikov and completed a six-year doctorate.
25 After being qualified you worked as a doctor in Lebanon and then you returned to live Australia in 2004. You completed the necessary requirements that enabled you to become registered and work as a doctor in Australia. You worked at Western Health as a resident doctor for 2 years until such time as you were unable to continue working as a consequence of serious injuries you suffered following an assault in 2007.
26 As a consequence of that assault you lost sight in the left eye and suffered paralysis on the right side of your body. You are unable to drive now as a result of the injuries and have not worked. You have been on a Disability Support Pension since. Dr Gault in his report confirmed that your hemiplegia indicates you have suffered a brain injury from that assault.
27 Recently, well, at the time of the plea hearing you were seeing a treating psychologist, Mr Harvey Abbott and also you had been reviewed by Mr Gault, forensic psychologist. Although, Mr Johnston confirmed today you are no longer receiving any active treatment.
28 I had regard to the report of Dr Robert Bourke, clinical neuropsychologist. His report from 4 January 2017 says that you were the subject of a prolonged acute admission between 28 April 2007 and 4 June 2007 at Royal Melbourne Hospital following an alleged assault where you suffered a penetrating injury to your left eye, along with a fracture to the left orbital roof. You had a period of post-traumatic amnesia and ongoing right-sided weakness and expressive dysphasia. He noted that you walked with an ataxic gait and presented with reduced range of movement and weakness in your right upper and lower limbs. You had no vision out of your left eye and you wear an ocular prosthesis.
29 Dr Bourke in his report notes reduced movement in your right arm. You now write with your non-preferred left hand, speak with slightly pressured speech and you are often tangential in conversation.
30 He says the hospital records confirm that you sustained a moderate to severe acquired brain injury, including an extended period of post-trauma amnesia following the assault.
31 His assessment was that you performed in the borderline range overall on measures of intellectual function, which represents a significant decline from your estimated premorbid level of functioning, that is, cognitive functioning.
32 You are now slow to process information, have limited attentional abilities and there are other executive difficulties that he highlighted. The conclusion can be drawn that your cognitive test performances fall well below what would have been your premorbid level of cognitive function. They are consistent with ongoing cognitive sequelae following the acquired brain injury sustained in 2007. His test results demonstrate at least a moderate to severe acquired brain injury.
33 He says given it has now been over 10 years since the assault that your deficits are stable and enduring. He says you exhibit no insight into your acquired brain injury and resultant cognitive deficits.
34 He notes, in his opinion, given the nature and severity of that injury, you are likely to exhibit a range of reduced high level adaptive behaviours, included amongst that is reduced judgement self-monitoring and frustration tolerance. Due to your lack of insight into your acquired brain injury, it will be difficult for you to take on board and adopt any compensatory strategies.
35 Having regard to the material that is before the court, including the report from Mr Steven Gault, clinical psychologist and his addendum of 21 September 2017 and the expressed opinion of Mr Bourke, I consider that all the principles of Verdins[1] are enlivened. That is not challenged by the Crown.
[1]R v Verdins [2007] VSCA 102.
36 Therefore, I accept there is a link between the acquired brain injury and this offending and therefore, there is a need to reduce your moral culpability and to moderate the need to emphasise both general and specific deterrence.
37 Furthermore, the imposition of a further gaol term would be more burdensome for you than for a prisoner without such a condition and also may increase the chance of your condition being made worse.
38 I have taken into account that in formulating the appropriate sentence, as well as all the matters Mr Johnston put in mitigation, namely the plea of guilty entered at the earliest opportunity at committal mention. There is real utility in that plea. In particular you have spared your sister having to come to court to give evidence on your trial. You have facilitated justice and therefore a discount in your sentence will be applied.
39 I also have had regard to the context of the offending and given that I consider that there is a real link between your acquired brain injury and the offending, I consider that this matter is a unique situation, where the imposition of further penalty is not required in order to satisfy all the sentencing principles. It can be distinguished from other cases of aggravated burglary, it was only an attempted aggravated burglary and there is a particular context. It has been some time since the offending, there have been no further incidents. You are currently living at home in the bungalow with your parents and it is evident that the family is taking every measure it can to avoid any interaction between yourself and your sister and you are accommodating that. I therefore consider that the risk of further offending in a like nature is reduced. I consider that the delay has meant that you have been able to demonstrate to the court that you are able to conduct yourself in a way that you are not committing further offending. That all goes well in terms of your rehabilitation.
40 I did have you assessed as to your suitability for a Community Correction Order and you were found to be unsuitable.
41 Having regard to the expressed opinion of Dr Bourke, I consider that that is a reasonable outcome and that our Community Corrections system is not really set up to accommodate for individuals with such highly specialised needs, such as yourself.
42 I propose to impose a sentence of imprisonment in respect to this offending, that will be an aggregate sentence that reflects the time that you have already spent in custody. I consider that is sufficient punishment and addresses the need to adhere to all the sentencing principles adjusted in respect to you to reflect your condition.
43 Mr Dib, the formal court orders in respect to the three charges on the Indictment are that you will be convicted and sentenced to an aggregate term of imprisonment of 85 days. I make a declaration that you have already spent 85 days in custody and direct that that be entered into the records of the court. My intention is that you will be released today.
44 I make the formal order in respect to summary Charge 3, the unlawful assault, the charge was withdrawn at the plea hearing and will be struck out.
45 In terms of a s.6AAA declaration, but for your plea of guilty I would have imposed a sentence of imprisonment of 12 months. I do not need to declare a non-parole period, do I?
46 MR JOHNSTON: Twelve months, just on the cusp, Your Honour, I don't - - -
47 HER HONOUR: No.
48 MR JOHNSTON: It's up to, Your Honour.
49 HER HONOUR: Yes, I'm not going to. All right, so that's good.
50 MR JOHNSTON: As the court pleases.
51 MR JASSAR: Your Honour, there is one further matter.
52 HER HONOUR: Yes.
53 MR JASSAR: And that it's encumbered upon me to - - -
54 HER HONOUR: About - - -
55 MR JASSAR: - - - seek a certificate - - -
56 HER HONOUR: Yes, a certificate, yes.
57 MR JASSAR: - - - in relation to 12 October 2017.
58 HER HONOUR: Yes, I'll grant that.
59 MR JASSAR: As Your Honour pleases.
60 HER HONOUR: That was my fault, wasn't it? I was sick. Yes.
61 MR JASSAR: The court could not accommodate us on that day.
62 HER HONOUR: Yes. I wasn't well and no one could deal with it. All right, I'll grant that certificate Mr Johnston and that will be prepared and signed and sent to your instructor.
63 MR JOHNSTON: As the court pleases.
64 MR JASSAR: As Your Honour pleases.
65 HER HONOUR: All right, so Mr Dib can be released from the Dock now.
66 PRISON OFFICER: Yes, Your Honour.
67 HER HONOUR: Thank you both for your assistance and in particular Mr Johnston, it's been interesting.
68 MR JOHNSTON: It has.
69 HER HONOUR: But worthwhile.
70 MR JOHNSTON: Indeed.
71 HER HONOUR: I think he's demonstrating he's doing well.
72 MR JOHNSTON: I think that's right.
73 HER HONOUR: Yes. Thank you. Thank you, Mr Dib.
- - -
0